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 Grandparents and the best interests of the child |
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Tom is a five year old boy and has lived with his father ever since his parents separated last year. Sadly, his mother has not kept in contact with him or his father. Tom's father has had trouble coping with the fact that Tom's mother left and has developed a substance abuse problem. Although he loves Tom very much he becomes abusive when he is drunk and Tom feels afraid in his presence.
Tom has always spent a lot of time at his paternal Grandma's house. Grandma takes Tom to Kindergarten, makes sure he has his lunch, takes an interest in his education and takes him to the doctor when he is sick. He feels very safe with Grandma.
Grandma is very concerned about Tom and wants Tom to come and live with her where she can look after him. She knows Tom loves his father and she wants to foster their relationship.
Can Grandma obtain parenting orders from the court which allow Tom to live with her and have contact with his father?
After significant lobbying by 'grey power' groups, changes made to the Family Law Act in 1996 confirmed the important role that people such as grandparents have in the lives of children.
Grandparents are able to seek contact and residence of their grandchildren in appropriate cases where they have played an active role in the lives of the children. The court can make a parenting or contact order in favour of any person concerned with the care, welfare or development of the child.
There is no legal presumption in favour of granting residence and contact in favour of a natural parent.
Whilst the Family Law Act does recognise that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, or have never married, the principal guiding force is the consideration of what is in the best interest of the child.
In order to determine the best interest of the child the court must address a number of considerations. These considerations include
- any wishes expressed by the child;
- the nature of the child's relationship with its parents and other persons;
- the effect of any changes in the child's circumstances (including separation from its parent);
- the capacity of a person to provide for the child's emotional and intellectual needs;
- the need to protect the child from physical or psychological harm;
- the attitude of the parents toward the child and to the responsibilities of parenthood as demonstrated by the child's parents;
- any family violence involving the child or a member of the child's family; and
- any other fact or circumstance that the court thinks is relevant.
When considering the best interests of a child, the courts have regard to what is best for the child both in the short term and in the longer term. Courts are prepared to make an order which may cause a child some short term distress or disadvantage if they are reasonably satisfied that the order will nonetheless be to the clear benefit of the child in the longer term and the long term benefits outweigh the short term disadvantages.
This means a court may remove Tom from his regular residence with his father to the home of the Tom's grandmother if the court is satisfied that the short term displacement experienced by the child will be justified in the longer term benefits to the child.
A common factor that can work against a grandparent's case is their age and health which may inhibit their ability to provide adequate care for the children when compared to a younger party who will be willing and able to play a more active role in the child's development.
A person who has played no actual part in the care of a child is unlikely to be successful in an application for parenting orders, no matter how concerned and suitable that person might be. For example, a grandmother who has come to Australia for the specific purpose of taking care of a child she has never met and whose parents are unable to care for the child might be met with the argument that she cannot seek a parenting order because she is not a person who is concerned with the child even though she might be concerned about the child.
In Tom's case, Grandma is able to apply to the courts to have parenting orders which seek to have Tom live with her and have contact with his father. The court will consider her application in terms of the best interest of Tom and it is quite within the realm of possibility that the orders she seeks will be granted.
February 2001
February, 2001
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